Law Times

Page 10 June 17, 2013 Law Times • FOCUS Aboriginals battling family law changes BY JuDY VAN RHIJN For Law Times T he federal government's latest attempt to bring western family law principles to native reserves is once again attracting controversy. While off-reserve aboriginals and provincial legislatures support the legislation, on-reserve representatives have expressed overwhelming opposition. Aboriginal law practitioners watching the debate, meanwhile, are just hoping their clients will end up with some rights they can rely on. The family homes on reserves and matrimonial interests or rights act is the federal government's fourth attempt to address the vacuum that exists in matrimonial property laws in aboriginal communities. The standing committee on the status of women has just referred the bill back to Parliament without amendment despite hearing a litany of concerns about the process and the lack of consultation and non-legislative measures and support. Nobody disagrees that legislation is necessary, but critics view this particular version as offensive and misguided. Toronto lawyer Ernie Tannis explains the GIVE THE MOST UP-TO-DATE FEDERAL EMPLOYMENT AND LABOUR LAW ADVICE NEW EDITION CONSOLIDATED FEDERAL EMPLOYMENT AND LABOUR STATUTES AND REGULATIONS 2013 CONTRIBUTING EDITOR: ROBERT S. GREENFIELD, B.A., J.D. Save valuable time finding the most current information on employment standards with Consolidated Federal Employment and Labour Statutes and Regulations 2013. This annual publication consolidates and keeps current all statutes and regulations pertaining to labour and employment law in Canada, ensuring that you are up to date with all the latest developments in the area. 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TRUSTED. current legal situation. "It is commonly accepted by government and native leadership that there is a huge gap in relation to family law rights and responsibilities. It stems from the leading cases of Derrickson [v. Derrickson] and Paul [v. Paul] of the Supreme Court which found that because of the constitutional division of power, the family law of the provinces does not apply in native territories. Consequently, there are no matrimonial rights that apply on marriage breakup. It all has to be negotiated. The parties can't deal with possession of property or enforcement or collection because it is Crown land." While policymakers and aboriginal advocates have been aware of the problem for more than 20 years, those actually affected by the situation may not be aware of it. "To the clients themselves, it can be quite shocking at the end to realize they have no rights," says Tannis. In fact, the standing committee has heard many heartbreaking stories of women who contributed financially to building homes on reserves but upon marital breakdown found themselves homeless because of the unique land-tenure system and band-member rights. First Nations communities have complex land codes that include custom allotment, certificates of possession, and a variety of other mechanisms that mean when there's a marital breakdown, many spouses have no rights at all. Communities can create their own membership codes that may involve blood quantum so that a woman who's not a member of the community or has partial status won't be able to have land. If the government changes the rules, the communities suffer a so-called checkerboard effect as non-native spouses end up owning tribal land. In many homes, there are large extended families that include grandparents who may either be elderly and infirm or quite young and helping to raise the children. Deciding who remains in the house on marital breakdown becomes a complex issue exacerbated by chronic housing shortages 'It is commonly accepted by government and native leadership that there is a huge gap in relation to family law rights and responsibilities,' says Ernie Tannis. and a lack of women's shelters and homes for the elderly. The new legislation provides that until communities create their own laws, the federal legislation will apply by default. There are 615 groups empowered to enact their own laws. To pass rules that comply with the legislation, there has to be a vote within the community involving a majority. There's a 12-month transition period before the default laws kick in. One of the constant refrains from native chiefs who appeared before the committee, many of whom are lawyers, was that the federal government's approach was legally incorrect. Tannis explains: "There are a number of levels to the legislation that deal with all the issues we're familiar with and take account of traditional approaches. Then there's the Marianas Trench of sovereignty and native people's refusal to be recolonized. There is the dispute on the surface issue and then there is the underlying conflict of their right to govern themselves which manifests itself in every issue." 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